Norris v. Crandall

CHIPMAN, C. Plaintiffs were the owners of certain land situated in San Diego county, and defendants, or some of them, were owners of certain improved lots in the city of Lincoln, Nebraska. An exchange, after much negotiation, was finally agreed upon between the parties, and deeds made September 10, 1897. Defendants had formerly resided in Lincoln, but had removed to San Diego in 1895. Plaintiffs resided in San Diego county, and had, up to 1897, never been in Lincoln. Upon the exchange of deeds, plaintiffs and defendants went into the possession of their several lots and tracts of land, plaintiffs removing to Lincoln, where they arrived and went into possession October 5, 1897. The complaint alleged that the San Diego land and improvements were of the value of $3,600, and the personal property included in the trade (being farm implements and other ranch belongings) was of the value of $600, making in all $4,200; that defendants, through defendant G. H. Crandall, acting in their behalf, represented their Lincoln property to be worth $6,000, and that it was encumbered to the extent of $1,100, and no more; “that said property was worth and of the market value of four thousand dollars, at least, over and above said mortgages. ’ ’ Certain alleged false representations as to the improvements on the lots are set forth, and that the property was bringing nine dollars per month rent, and “that said real property was level, and in fine shape, and in a fine and first-class condition.” It is alleged that plaintiffs had no personal knowledge of the property, and relied wholly on the representations of defendants, which, it is alleged, were entirely false, and fraudulently made to deceive and cheat plaintiffs, and on this ground the rescission is sought. Among other of the alleged false representations, it is alleged that, instead of a mortgage debt of $1,100 being on the property, it was encumbered in the further sum of $1,000.

The court made the following findings of fact: (1) That the San Diego property was of the same value, at the time of the exchange, as the Lincoln property, in excess of all mortgages thereon, to wit, of the value of $2,000. (2) That while the negotiations for the trade were progressing defendants gave to plaintiffs the name of a party then residing in San Diego, and pointed out his residence, to wit, J. F. Kinney, Esq., who, defendants informed plaintiffs, once owned a portion of the Lincoln property in question, and [708]could give plaintiffs any information they might desire regarding said Lincoln properties. (3) That defendant G. H. Crandall represented the Lincoln properties to be of the value of $4,000, and that he believed said properties to be worth that amount; that plaintiff A. G. Norris represented and that he believed his San Diego property to be worth $3,500, “but that neither plaintiffs’ said property nor defendants’ said property was worth but $2,000 over and above all mortgages and encumbrances, of which latter there were none on the Lincoln property except in the amount of $1,100.” The finding 3 then states certain specific representations made by defendant G. H. Crandall, and that they were true, and that he did not represent the property “to be in fine shape, level, and in fine and first-class condition,” and it is found that the representations made by said Crandall “were not made to deceive or to defraud plaintiffs, or either of them; that plaintiffs believed and relied upon the foregoing statements of said G. H. Crandall.” (4) That plaintiffs went upon and took possession of the Lincoln property October 5, 1897, “and took no steps and made no offer to rescind their contract of exchange of said properties,” and gave no notice of any dissatisfaction with the trade until July, 1898. (5) That plaintiffs knew, when the exchange was made, that defendants had not seen the Lincoln property since October, 1895. (6) That the allegations of fraud in plaintiffs’ complaint alleged against defendant G. H. Crandall are not sustained by the evidence. (7) That plaintiffs were not induced to exchange their property “by the fraudulent representations or statements of said defendants, or any of them. ’ ’